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SHULL ET UX. v. SCHWARTZ (05/22/50)

May 22, 1950

SHULL ET UX., APPELLANTS,
v.
SCHWARTZ



Appeal, No. 168, Jan. T., 1949, from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1948, No. 2069, in case of Burgess K. Shull et ux. v. Dr. George J. Schwartz, Jr. Judgment affirmed.

COUNSEL

Edwin Hall, 2nd, with him Harry J. Alker, Jr., for appellants.

Philip H. Strubing, with him Evans, Bayard & Frick, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Stearne

[ 364 Pa. Page 555]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This appeal is by the plaintiffs from the entry of judgment for the defendant upon a jury's verdict and the refusal of the court below to grant a new trial.

The plaintiffs are husband and wife. The defendant is a practicing surgeon. Defendant operated upon the wife-plaintiff, who was his private patient, in a public hospital. The operation was successful. Later, a hospital intern was directed to remove the stitches. Such service constituted part of the post-operative treatment of the patient. The stitches were not removed by the intern in the presence of or under the supervision of defendant. Nine days after the operation the patient was discharged from the hospital and returned to her home. She continued to feel pain and was uncomfortable and was taken for examination to defendant's private office. It was then discovered that two stitches had not been removed by the intern from the incision. Defendant removed the stitches and dressed the wound.

[ 364 Pa. Page 556]

The patient becoming dissatisfied, employed another physician who thereafter professionally treated her.

Suit was instituted against the surgeon. Two questions were presented: (1) Were the two stitches left in the incision as a result of defendant's negligence. (2) Did the stitches cause the infection to the plaintiff's damage.

This Court answered the first question in the negative. In McConnell v. Williams, 361 Pa. 355, 65 A.2d 243, Mr. Justice HORACE STERN said, p. 364: "... a surgeon's liability [does not] apply, after the operation is concluded, to treatment administered by floor nurses and internes in the regular course of the services ordinarily furnished by a hospital; as to all such care and attention they would clearly be acting exclusively on behalf of the hospital and not as assistants to the surgeon."

Even though the intern had been negligent in postoperative treatment, where the surgeon did not personally participate therein, ...


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